Molloy & Molloy - [2016] FamCAFC 264

FAMILY COURT OF AUSTRALIA

MOLLOY & MOLLOY

[2016] FamCAFC 264

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where the applicant provided an adequate explanation for the delay – Appeal reinstated.

FAMILY LAW – COSTS – Where the respondent seeks that the applicant or the applicant’s solicitors pay his costs of the application for reinstatement – Where the circumstances giving rise to the application for reinstatement are the sole responsibility of the solicitors acting on behalf of the applicant – Where there are justifying circumstances for an order for costs to be paid by the applicant’s solicitors – Applicant’s solicitors to pay respondent’s costs fixed at $2,500.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth): r 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Molloy

RESPONDENT:

Mr Molloy

FILE NUMBER:

SYC

3838

2014

APPEAL NUMBER:

EAA

180

2016

DATE DELIVERED:

14 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

14 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2016

LOWER COURT MNC:

[2016] FCCA 2400

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

GA Lawyers

Orders

That the Notice of Appeal filed on 18 October 2016 be reinstated.
That the time to file a draft appeal index be extended to the close of business on 21 December 2016.
That Marsdens Law Group pay the respondent’s costs of the application in the amount of two thousand five hundred dollars ($2,500) within 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Molloy & Molloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 180 of 2016
File Number: SYC 3838 of 2014

Ms Molloy

Applicant

And

Mr Molloy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed on 18 November 2016 Ms Molloy (“the applicant”), seeks to reinstate her Notice of Appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Molloy & Molloy

Details

AGLC: Molloy & Molloy [2016] FamCAFC 264
Case: [2016] FamCAFC 264
Decision Date: 14 December 2016

CaseChat Overview and Summary

The appeal in Molloy & Molloy was brought before the Family Court of Australia, with the primary issue being the reinstatement of an appeal that was considered abandoned. The applicant had failed to file a draft appeal index within the stipulated time frame, as per rule 22.13 of the Family Law Rules 2004 (Cth). The respondent opposed the application for reinstatement, but the court found that the delay was attributable solely to the applicant’s solicitors, and not the applicant themselves. The applicant provided a satisfactory explanation for the delay, which led the court to consider the application for reinstatement.

The court was tasked with deciding whether the appeal should be reinstated and, if so, whether the applicant’s solicitors should bear the costs associated with the application for reinstatement. The court held that the delay was due to the negligence of the applicant’s solicitors, and thus the fault should lie with them. Given the circumstances, the court found justifying reasons to order the applicant’s solicitors to pay the respondent’s costs. The court deemed the amount of $2,500 as reasonable and appropriate for the respondent's costs of the application.

The court granted the application for reinstatement of the appeal and extended the time to file the draft appeal index to 21 December 2016. The court also ordered that the applicant’s solicitors, Marsdens Law Group, pay the respondent’s costs of $2,500 within 28 days. This decision reflects the court’s balanced approach, ensuring that the applicant’s right to appeal is upheld while holding the responsible party accountable for the delay and associated costs.

Orders

Orders of the court

That the Notice of Appeal filed on 18 October 2016 be reinstated.

That the time to file a draft appeal index be extended to the close of business on 21 December 2016.

That Marsdens Law Group pay the respondent’s costs of the application in the amount of two thousand five hundred dollars ($2,500) within 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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